McCarty v. Roos et al

Filing 228

ORDER that 220 MOTION for Certificate of Appealability is DENIED. Signed by Judge James C. Mahan on 10/23/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ROBERT JOSEPH MCCARTY,

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2:11-CV-1538 JCM (NJK)

Plaintiff,

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v.

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JOHN V. ROOS, et al.,

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Defendants.

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ORDER

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Presently before the court is pro se plaintiff Robert Joseph McCarty’s motion for a certificate

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of appealability. (Doc. # 220).

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I.

Background

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On September 16, 2013, plaintiff filed a motion to vacate his status as a registered sex

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offender pursuant to 28 U.S.C. § 2255. (Doc. # 197). On September 20, 2013, the eight federal

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defendants in this case filed a motion to stay the § 2255 motion pending the resolution of two

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outstanding motions to dismiss, as the court’s decision on these motions could eliminate the issues

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in dispute with regard to these defendants. (Doc. # 200). On October 4, 2013, Magistrate Judge

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Koppe, in consultation with this court, granted the motion to stay and denied plaintiff’s § 2255

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motion without prejudice. (Doc. # 218). Petitioner filed this motion seeking a certificate of

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appealability for his § 2255 motion. (Doc. # 220).

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II.

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James C. Mahan
U.S. District Judge

Legal Standard and Discussion
Before the denial of a § 2255 motion can be appealed, a district court must have issued a final

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judgment on the motion. 28 U.S.C. § 2255(d). A district court’s dismissal of a filing without

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prejudice does not qualify as a “final judgment.” See Conway v. Slaughter, 440 F.2d 1278, 1279 (9th

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Cir. 1971).

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In this case, plaintiff’s motion for a certificate of appealability is not warranted, as this court

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merely dismissed his § 2255 motion without prejudice pending its decision on several outstanding

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motions to dismiss. Plaintiff may have the opportunity to re-file his § 2255 motion depending upon

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the court’s decision regarding these motions to dismiss. Thus, this court has not issued a final

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judgment on plaintiff’s § 2255 motion, and a certificate of appealability would not be appropriate

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at this time. Therefore, the court will deny plaintiff’s motion.

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Accordingly,

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IT IS HEREBY ORDERED ADJUDGED AND DECREED that plaintiff’s motion seeking

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a certificate of appealability (doc. # 220) be, and the same hereby is, DENIED.
DATED October 23, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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